Allahabad High Court
Smt. Kusum Kesi {In Jail} vs State Of U.P. on 4 July, 2013
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
A.F.R
Reserved
Case :- CRIMINAL APPEAL No. - 70 of 2009
Appellant :- Smt. Kusum Kesi {In Jail}
Respondent :- State Of U.P.
Counsel for Appellant :- In Person,R P Mishra II,Vineet Singh Chauhan
Counsel for Respondent :- G.A. (Sri Vipul Gupta, Adv.)
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Hon'ble Zaki Ullah Khan,J.
1. The instant appeal has been preferred by jail inmate Smt. Kusum Kesi against the judgment and order dated 11.11.2008 passed by Additional Sessions Judge/Fast Track Court No.-1, Bahraich convicting and sentencing her ten years rigorous imprisonment under Section 8/20 N.D.P.S. Act and a fine of Rs.1 lakh and in default of payment of fine, she will have to undergo simple imprisonment for two years in addition.
2. Brief facts giving rise to this appeal are that on 09.04.2007 Sub-Inspector, Sri G.D. Mehar Das, Seema Suraksha Bal of Company Murtiha, Bahraich lodged a written report Ext. Ka-1 at police station-Murtiha, District Bahraich disclosing that on 09.04.2007 at about 15:30 hours a horse cart (Tanga) came from the side of Nepal; that the said horse cart (Tanga) was intercepted by Lance Nayak (L.N) Jivan Kumar, who was on duty; that a Nepali lady was seated in the horse-cart (Tanga) holding five litres plastic container in her hand; that after thorough examination, container was found to be without base; that after checking, an item in the shape of bread and tablets were found inside it. The said lady informed that it is charas and she is bringing it from Nepal but she did not disclose as to where from she is carrying charas; that she introduced herself as Kusum Kesi, w/o late Gopal Kesi of Nepal; that the said charas was weighed on the spot and was found to be 2.250 kg; that the seizure memo was prepared at the spot and apprehension memo of the lady was also prepared; that the recovered articles and the accused were handed over to police of police station Kotwali Murtiha, District-Bahraich and first information report was lodged. Apprehension memo is Ext. Ka-2 and Seizure Memo is Ext. Ka-3 and Seizure of Narcotics Course is Ext. Ka-4. Police took the articles recovered from her possession and prepared specific seal and entire articles were sealed and recovery memo was prepared which is Ext. Ka-5. The F.I.R. was registered at police station concerned on 10.04.2007 at about 1:30 a.m. and case was registered as Case Crime No.99 of 2007 under Section 8/20 of N.D.P.S. Act. The first information report is Ext. Ka-8 and G.D. is Ext. Ka-9. The Inspector In-Charge, Sri Ram Lakhan Saroj investigated the matter and prepared the site plan (Ext. Ka-6) and sent the seized articles to Forensic Science Laboratory, Lucknow. The Forensic Science Report is Ext. 12-A which shows the positive report and it was adjudged as charas and charge-sheet has been submitted under section 8/20 of N.D.P.S. Act.
3. The appellant denied the charges levelled against her and claimed to be tried. S.I. G.D. Mehar Das (PW-1) of S.S.B Company Murtiha, Bahraich, Head Constable Karnail Chand (PW-2) SSB-06 Batalion, Murtiha, Lance Layak Jivan Kumar(PW-3) S.S.B, Murtiha and S.I. Sri Ram Lakhan Saroj, Investigating Officer (PW-4) and Constable Raj Kumar Yadav (PW-5) were examined before the Court and all the memos were presented before the Court which were exhibited.
4. The appellant in her statement recorded under section 313 Cr.P.C. alleged that police personnel were demanding money and when she did not pay the same, she has been implicated falsely on account of enmity and ill will. The court was of the opinion that the case is proved beyond all reasonable doubts and convicted the appellant.
5. Being aggrieved by the aforesaid order, the instant appeal has been preferred.
6. Learned counsel for the appellant argued the following points:-
i. The S.S.B was not empowered to arrest the person because they have been conferred power vide Noti. No.2184 (E), dated September 7, 2010 which reads as follows:-
"In exercise of the powers conferred by sub-section (1) of Section 42 and Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), the Central Government hereby empowers the officers of and above the rank of Sub-Inspector of the Border Security Force to exercise the powers and perform the duties specified in Section 42 within the areas of their respective jurisdiction and also authorises the said officers to exercise the powers conferred upon them under Section 67."
Learned counsel for the appellant argued that under these circumstances, since the matter relates to the year 2007, the SSB had no power to intercept such type of person and, therefore, arrest is bad in law. Since they were not authorized to arrest the person, therefore, no case is sustainable against the appellant.
ii. The search is unauthorized and no conviction can be based on unauthorized search. Learned counsel for the appellant relied upon a decision of Uttarakhand High Court of Man Singh Bohra vs. State, reported in [2011 (3) EFR 677] wherein it has been held as under:-
"(B) Narcotic Drugs and Psychotropic Substances Act, 1985--Sections 20 and 42--Recovery of charas from accused/appellants-Conviction and sentence--Sustainability--On facts, Sub-Inspector of Sashastra Seema Bal was not authorized to arrest accused/ appellants and to seize charas, hence, impugned order of conviction and sentence not tenable, hence, set aside--Direction issued.
Where, it is clear that on 30.11.2005 i.e. the date of incident, the Sub-Inspector of the Shastra Seema Bal was not authorized to arrest of the accused/ appellants and to seize the CHARAS u/s 42 of the Act, hence the arrest of the accused/appellants under the Act and recovery of the items, is not as per the law provided under Section 42 of the Act, therefore, on the basis of this arrest/seizure, conviction and the sentence awarded by the trial court vide its impugned judgment and order is not justified as per the law, and the impugned conviction and sentence awarded by the Trial Court is liable to be set aside."
iii. Third point raised by the learned counsel for the appellant during the argument is that search was made by a male person and it was not taken by female, therefore, entire search becomes illegal. Learned counsel for the appellant cited a decision of Hon'ble Surpeme Court in the case of State of Punjab vs. Surinder Rani Alias Chhindi, reported in [2001 (2) EFR 8 Supreme Court], wherein the Apex Court has held as under:-
"Narcotics Drugs and Psychotropic Substances Act, 1985, Sections 50(4) and 18--Search of female accused--Section 50(4) is mandatory--That no female to be searched by a male--Even if no female was available--Admittedly accused Surinder Rani was searched by Gurdip Singh S.I. And found opium--Acquitted on this sole ground--No interference required--Appeal dismissed."
Learned counsel for the appellant has also relied upon a decision of Hon'ble Madras High Court in the case of Mary @ Mehrunnisa and others vs. State, reported in [2010 (4) Criminal Court Cases 303 (Madras), wherein it has been held as under:-
" Narcotic Drugs and Psychotropic Substances Act, 1985, S.8(c), 21 and 50(4)--Recovery of heroin--Accused a lady--Provision of search of a female accused by a female is mandatory--Prosecution did not examine woman constable who searched the accused--No reason given for non-examination--Conviction set aside."
Learned counsel for the appellant also cited a case of Reena Verma vs. Additional District and Sessions Judge, Maharajganj and others, reported in [2005(2) EFR 657], wherein it has been held as under:-
"Narcotic Drugs and Psychotropic Substances Act, 1985, Sections 8/20 and 50(4)--Criminal Procedure Code, 1973, Sections 100(3) and 482-- Petitioner while coming from Nepal, entered into territory of India--Suspected and checked by SSB constables--As a result of search 5 kg. of charas recovered from her possession-Chargesheet submitted--Present case under Section 482 filed--Petitioner being a women, search ought to have been made by female/women only--It is mandatory--Petitioner was not informed of her right to be searched before a Gazetted Officer or Magistrate--Search were not at all authorized under any provision of law--Proceedings quashed--Petitioner allowed."
Learned counsel for the appellant also placed reliance of Fatto @ Phoola @ Kamal Bee vs. State of M.P., reported in [2004 Crl. L.J.4353], wherein it has been held as under:-
"Narcotic Drugs and Psychotropic Substances Act (61 of 1985), S. 50(4)--Search and seizure--Accused, a lady carrying contraband articles in a gunny bag which was kept over her head--was not searched by any female--Non-compliance of mandatory requirement of provisions of S. 50(4)--Conviction of accused, set aside."
Learned counsel for the appellant also cited a decision of Hon'ble Madhya Pradesh High Court-Indore Bench in the case of Bansilal vs. State of Madhya Pradesh, reported in [2011(1)EFR 221]. The Madhya Pradesh High Court has held as under:-
"(B) Narcotic Drugs and Psychotropic Substances Act, 1985 -Section 50(4)--Compliance of Section 50(4) held mandatory--Also, no female could be searched by male--Apex Court decisions considered."
Learned counsel for the appellant also cited a case law of Angrej Kaur vs. State of Haryana, reported in [2013 (1) 677 (P & H) wherein it has been held as under:-
"Narcotic Drugs and Psychotropic Substances Act, 1985, S.50(4)-Female Search by a male-Mandatory provision of S. 50 of the Act not complied with in a proper manner-Accused acquitted."
iv. Learned counsel for the appellant raised another argument that sample was not drawn at the spot but at the police station and he cited a decision of Hon'ble Apex Court in the case of Kuldeep Singh vs. State of Punjab, reported in [(2012 (1) EFR 12] wherein it has been held as under:-
"(A) Narcotic Drugs and Psychotropic Substances Act, 1985 -Sections 15 and 42-Recovery of 150 Kgs of poppy husk in all contained in four hags from appellant-accused-Trial Court found guilty and sentenced to 10 years RI with fine of Rs. One Lakh as specified-Challenged in appeal--Dismissed-Appeal under-Sustainability--Appreciation of evidence-Held, seizure and collection of samples not found in accordance with provisions of Section 42 of Act, hence, entire procedure stood vitiated as a result thereof-Impugned judgment of conviction and sentence set aside-Fine imposed had already been refunded to appellant-direction issued-Appeal allowed.
3. At the time of seizure of the said contraband, no samples were taken by P.W.3. The same was seized by Mr. Malkiat Singh, who also sealed the same with his seal, and thereafter, the four bags were taken to the Police Station where the Station House Officer, Gurmail Singh, broke open the seals and mixed the contents of the four bags together, and took the samples therefrom and resealed the bags with his seal. At that point of time, the Poppy Husk was weighed and found to be 150 kilo grams of Poppy Husk in all."
v. Next point raised by learned counsel for the appellant is that compliance of Section 50 of N.D.P.S. Act has not been made in accordance to the provisions of the Act. Learned counsel for the appellant cited a case law of Hon'ble Apex Court in the case of C. Ali vs. State of Kerala, reported in [2000 (2) EFR 1 (SC)].
vi. Lastly, learned counsel for the appellant argued that no chemical examination report (CER) put to appellant under Section 313 Cr.P.C. In support of his contention learned counsel for the appellant relied upon a judgment of Hon'ble Rajsthan High Court in the case of Bheru Lal and Another vs. The Union of India, reported in [2011 (2) Criminal Court Cases 631 (Rajasthan) wherein it has been held as under:-
"Narcotic Drugs and Psychotropic Substance Act, 1985, Ss. 8, 18, Criminal Procedure Code, 1973, S. 313-Opium-Recovery of 130 kg.-Statement of accused u/s 313 Cr.P.C.-Questions as to actual contents of Chemical Analyst report, purity of substance discovered in the sample, weight of samples received by Chemical Analyst report to accused in his statement u/s 313 Cr.P.C.-Held, accused was not confronted with the most incriminating evidence against him-Report of Chemical Analyst cannot be relied against him-Held, to convict on the basis of Chemical Analyst report would be subject to accused to an unfair trial-Accused acquitted."
7. Learned counsel for the appellant, therefore, argued that the appellant is liable to be acquitted as legal requirements have not been complied therewith and conviction cannot be sustained on the basis of these facts.
8. In reply to the contention raised by the appellant, learned counsel appearing for State relied upon a case law of Hon'ble Apex Court in the case of Jarnail Singh vs. State of Punjab, reported in AIR 2011 SC 964, wherein it has been held as under :-
"(B) Narcotic Drugs and Psychotropic Substances Act (61 of 1985), S. 50-Search and seizure-Information of right of accused-Option whether he wanted to be searched in presence of a Gazetted Officer or a Magistrate-Was duly given to appellant-Appellant had, in fact, signed on consent statement expressing his confidence to be searched in presence of Inspector-It cannot be held that there was non-compliance with S. 50 of Act.
Learned counsel for the State further argued that Hon'ble Apex Court has also laid down that the requirement of Section 50 of the Act can be satisfied in the following manner:-
(c) Narcotic Drugs and Psychotropic Substances Act (61 of 1985), S. 50-Search and seizure-Compliance with S. 50-S.50 can be invoked only in cases where drug/narcotic/NDPS substance is recovered as a consequence of body search of accused-Recovery of narcotic is made from a container being carried by individual-Provisions of S.50 would not be attracted."
9. Learned counsel appearing for the State submitted that accused has raised plea of false implication. In the instant case, police personnel had noticed odd behaviour of the appellant. She was travelling on a horse cart (Tanga). Merely because prosecution has not examined any independent witness, it would not be necessary to reach the conclusion that the appellant has falsely been implicated particularly when the path on which the appellant was apprehended was not frequently used by public, therefore, the explanation given by the prosecution is plausible explanation and conviction can be sustained on the basis of these facts. Learned counsel for the State also cited a judgment of Hon'ble Apex Court in the case of Harjit Singh vs. State of Punjab, reported in [(2011) 4 Supreme Court Cases 441. Hon'ble Apex Court has laid down as under:-
"A. Narcotic Drugs and Psychotropic Substances Act, 1985-Ss. 2(xv)(a) or (b), 8 and 18(b) and Sch. Entries 77, 92 and 93-Punishment for possession of commercial quantity of opium-Morphine content how far relevant--Held, once identity of seized material is established as opium, case is to be dealt with under S. 2(xv)(a) irrespective of its morphine content-Percentage of morphine becomes relevant when seized material is a "mixture" as mentioned in S.2(xv)(b)-This interpretation is consistent with Entries 77, 92 and 93 wherein morphine, opium and opium derivatives have been treated as different items--Contrary interpretation will render Entry 92 redundant-7.10 kg. Of opium seized from appellant-Report of forensic science laboratory showed that percentage of morphine in opium was less as 0.8%-Held notwithstanding very less quantity of morphine in opium, appellant was rightly convicted for possession of commercial quantity of opium under S. 18(b)-Interpretation of Statutes-Subsidiary Rules--Redundancy--Avoidance of."
10. Learned counsel, therefore, argued that learned defence counsel failed to establish that all the proceedings were illegal. In fact, due care has been taken and the matter has been considered and after due precaution the case was lodged at the police station concerned. He further argued that SSB (Seema Suraksha Bal) is primarily looking after infiltration of the illegal activities at the border and that is why they have been subsequently granted power by Noti.No.S.O. 2184(E) dated September, 2010 and they have been also given full power under Section 42 of N.D.P.S. Act but nevertheless they had power to check the infiltration and to monitor the illegal activities at the border. What has been noticed, was illegal activities and that is why the samples and entire materials were taken to the police station even a private person has got power to arrest a person, he is of the opinion that offence has taken place, therefore, SSB personnel realizing that the legal activities are happening before them. They took the matter to the police and handed over the accused to the police on the basis of written complaint. They themselves did not take any cognizance but referred the matter to the police station and the police came to action and the item was sent to Forensic Science Laboratory and when it was adjudged as charas then the matter was placed before the court. As far as lady is concerned, Hon'ble Apex Court's view in AIR 2011 is very clear that recovery was made from the container and she was not bodily possession of anything. Nothing has been recovered from her personal body search but the articles were recovered from the container which she held in her hand, therefore, there is distinction between body search and a thing which was she carrying in her hand. Since she was not required for personal search, therefore, argument that lady was not present will not help the appellant.
11. Heard learned counsel for the appellant as well as learned A.G.A. and perused the case laws cited by them. Learned counsel for the appellant vehemently argued that arresting officer P.W.-2 was not authorized under Section 42 of N.D.P.S. Act to make search on 09.04.2007 because such officer was authorized only vide notification of the Government of India No. S.O. No.2184 (E), dated September 7, 2010. By this notification the central government empowered the officers of and above the rank of Sub-Inspector of Border Security Force to exercise the power and perform the duties specified in Section 42 within the area of respective jurisdiction and they have also conferred the power under Section 67 of N.D.P.S. Act.
12. I have gone through the notification itself. This notification specifically mentions that the officers of the Border Security Force were empowered whereas Section 42 of the N.D.P.S. Act as amended by Act No.9 of 2001 specifies that with effect from 2.10.2001, any such officer (being an officer superior in rank to a person, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs, control, excise, police, or any other department of a State Government............ vide Section 42 of N.D.P.S. Act. It has been clear that they can enter into and search any building, conveyance or enclosed place at any time that means para-military forces i.e. Sashastra Seema Bal has been empowered by Act No. 9 of 2001 to entry, search, seizure and arrest without warrant or authorization only condition is that he must be above rank of sepoy or constable. The person who arrested was Lance Layak and he has inspected the horse cart (Tanga) in which the appellant was seated with container in her hand that means first objection raised by learned counsel for the appellant is uncalled for and without any basis because the notification dated September 7, 2010 was regarding the Border Security Force and not applicable to SSB which is para-military force and was duty bound to save the infiltration and illegal activities around the border. Therefore, there is no illegality in such Act.
13. Section 41 of the Cr.P.C. also empowers any police officer may without an order from a Magistrate and without a warrant, arrest any person who commits, in his presence, a cognizable offence, therefore, the objection is that Lance Nayak was not empowered, is baseless and law empowers an officer of the SSB to check in accordance with the rules and law. Therefore, there is no illegality as pointed out by the learned counsel for the appellant.
14. Learned counsel stressed his argument on citation of Uttarakhand High Court in the case of Man Singh Bohra vs. State reported in [2011(3) EFR 677), Criminal Jail Appeal No. 69 of 2007, Criminal Jail Appeal No.71 of 2007 and Criminal Jail Appeal No.72 of 2007. In this case learned Single Judge of the High Court held that Sub-Inspector of SSB was not authorized to arrest the accused/appellant to seize charas. Hence, the impugned order of conviction and sentence is not tenable and is set aside but in my opinion Section 42 (Amendment Act 7 of 2001) is a clear information which represent and in the later notification only BSF has been mentioned and not other para-military forces. The notification is not regarding para-military forces. The powers were conferred only to BSF. Therefore, this ruling will not attract the present set of facts.
15. As far as search regarding search of a female is concerned, learned counsel for the appellant cited following case laws:-
1. State of Punjab vs. Surinder Rani @ Chhindi (supra)
2. State of Punjab vs. Gurnam Kaur, reported in [2009 (3) CCC 515 SC]
3. Mary @ Mehrunnisa and others vs. State (supra)
4. Reena Verma vs. Additional District and Sessions Judge, Maharajganj and others (supra)
5. Fatto @ Phoola @ Kamal Bee vs. State of M.P (supra)
6. Bansi Lal vs. State of M.P., reported in [2011(1) EFR 221 M.P.
7. Angrej Kaur vs. State of Haryana (supra)
8. Geetabai @ Portable vs. State of M.P., reported in [2002 (2) EFR 328 M.P.
16. I have gone through the case of Jarnail Singh vs. State of Punjab (supra) in which Hon'ble the Supreme Court has clearly held that Section 50 of N.D.P.S. Act can be invoked only in cases where drug/narcotic/NDPS substance is recovered as a consequence of body search of accused. Recovery of narcotic is made from a container being carried by individual. The Provisions of Section 50 of N.D.P.S. Act would not be attracted. Hon'ble Apex Court in the case of Kalema Thumba vs. State of Maharashtra, reported in 1999 (8) SCC 257 has clearly held that "if a person is carrying a bag or some other article with him and Narcotic Drugs or Psychotropic Substance is found from him, it cannot be said that it was found from his person".
Hon'ble Apex Court in the case of Megh Singh vs. State of Punjab, reported in (2003) 8 SCC 666 has also laid down that " a bare reading of Section 50 shows that it applies in case of personal search of a person. It does not extend to a search of a vehicle or container or a back or premises". The Apex Court has also examined section 50 in the case of State of Himachal Pradesh Vs. Pawan Kumar, reported in (2005) 4 SCC 350 : 2005 (1) EFR 208. Thus, Section 50 of NDPS Act is not applicable in case of search from container which has been held by appellant in her hand. The facts of the case revealed that the appellant who is a Nepali lady was holding a 5 letres plastic container in a black colour polythene, therefore, it will not attract Section 50 of NDPS Act, therefore, the citation regarding search in presence of female constable will not attract the present set of facts because all those were applicable in the body search when body search in view of above citation was not taken then as per Hon'ble Supreme Court view the citation submitted by learned counsel for the appellant will not attract the facts of the appeal, therefore, these are not applicable.
17. Learned counsel for the appellant also challenged before this Court that sample was not drawn at the spot but at the police station and in support of that he has cited a case law of Kuldeep Singh vs. State of Punjab (supra), statement of P.W.-1 S.I. G.D. Mahesh Das clearly specifies that the recovered charas was weighed and the weight was found 2.250 kg. and the seizure memo was prepared on the spot and lady apprehension memo was also prepared and then it was handed over to the police of the police station concerned with the letter of request that proceedings be initiated in this regard. P.W.-1 stated in his statement that statement of appellant was present on the spot and she has also signed and her thumb impression was also taken on Ext. Ka-1. Apprehension memo was also prepared. Both head constables and Lance Lanayak Jivan Kumar obtained thumb impression of the appellant. Apprehension memo has been prepared in the court Ext. Ka-2. The appellant was apprised of the proceedings by reading it loudly. Seizure memo has been proved which is Ext. Ka-3 and the sealed items were handed over to the police station and placed the record room of the police station concerned. During the trial Sri S.C. Karnailchand and Lance Lanayak jivan Kumar were also examined.
18 P.W.-4 S.I. Ram Lakhan Saroj, Inspector-In-Charge of the police station deposed that he has prepared the recovery memo on the basis of article recovered from SSB personnel and entire process took place sufficient time. The recovery memo was prepared at the police station concerned, therefore, although the due procedure was adopted but when the articles were brought to the police station, the formalities were observed and entire procedure as mentioned in the N.D.P.S. Act has been followed. The chemical examination was conducted and sample was received and sealed articles were diluted and no abnormalities were found. This will not grant any benefit to the appellant.
19. As far as compliance of Section 50 is concerned, it has been clearly mentioned in the case of C. Ali vs. State of Kerala (supra) that recovery of narcotic is made from the container being carried by the appellant. Provision of Section 50 of N.D.P.S. would not be attracted, therefore, the citation submitted by the appellant will not attract in the present facts of the appeal.
20. Last point raised by learned counsel for the appellant is that chemical examination report was not explained to the accused. The appellant-accused was not subjected to the factual aspects regarding chemical examination report and in her statement under Section 313 Cr.P.C. she was not confronted with the facts. No such question was put and the appellant was not asked to explain. Learned counsel for the appellant cited a case law of Bheru Lal and Another vs. The Union of India (supra, reported in [2011 (2) Criminal Court Cases 631 (Rajasthan). As far as statement of Section 313 Cr.P.C. is concerned, the appellant was given an opportunity for submitting the defence and she has been confronted with each and every facts arrived after the evidence. The fact of chemical examination is not an independent fact but is a evidence depending on the other fact i.e. recovery of memo and she has been very well confronted with the statement. At the most, it can be treated irregularities and not illegalities and no prejudice can be said to have been caused. The appellant was confronted with all the questions regarding recovery and recovered item from her, therefore, this will not vitiate the proceedings when all the other facts supported the prosecution. Therefore, there is no illegality in the finding of the learned trial court..
21. As far as punishment is concerned, the appellant has been punished under sub Section (c) of Section 20 because recovered quantity was commercial one, therefore, she has been sentenced to ten years imprisonment with a fine of Rs. 1 lakh. There is no other possibility to reduce the sentence. The appeal deserves to be dismissed.
22. Accordingly, the appeal is hereby dismissed. Appellant is in jail. She shall serve out the sentence awarded to her.
Order Date :- 04.07.2013 akhilesh/-